Does a Home Office stamp overule our decision on RTR?

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  • #35215
    Anonymous
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    We have a claim from a non-EEA national.

    Her passport has a stamp that says:

    “[i:14ea7ababa]A right of residence in the United Kingdom as the family member of an EEA National[/i:14ea7ababa] [name] [i:14ea7ababa]who is resident in the United Kingdom in the exercise of a Treaty right is hereby given until 21st February 2010[/i:14ea7ababa]”

    Our claimant is no longer living with the EEA national named on the passport. We are looking in to her rights as a former family member. However, do we need to? Does this stamp entitle her to benefits until 2010, even if we think she doesn’t have a right to reside?

    Many thanks

    #98824
    Anonymous
    Guest

    Have a look at CIS/0185/2008, CPC/3588/2006 and CIS/0865/2008 … and take your pick!

    None of those cases is concerned with exactly the same facts that you are dealing with. As I understand it what you have there is:

    – a close family member (spouse, civil partner or direct ascendant/descendant)
    – not an EEA national herself
    – permit issued before the coming into force of 2004/38/EC and domestic Regulations adopting it.

    In 185/08 the permit was good enough. It was a pre-2004/38/EC case like yours. The holder was an EEA worker, rather than a non-EEA family member; however, the Commissioner paid close attention to the wording of the document and, like yours, it seemed to confer a right to reside for the period of its currency. She won.

    3588/06 was a pre-2004/38/EC case as well. This time, the claimant was an extended family member and also an EEA national himself. The Commissioner decided that the issue of the permit was a procedural formality that proved there were underlying substantive rights at the time of issue only: it did not confer such rights on its own.

    865/08 was a case involving a blue registration certificate issued under 2004/38/EC. The claimant got it when she was a worker, and still had it despite having given up work. Again, the Commissioner takes the view that the document does not confer a right in itself – you get the document because you have or had a right to reside. You can lose your right to reside while still in possession of a document, the document then won’t help you.

    As I say … take your pick!

    #98825
    Anonymous
    Guest

    Thanks for your help Peter.

    In think I’m going to go with the view that it only gives a right to reside at the time it is issued, and the rights can subsequently be lost.

    This is based on the three decisions, with a score of 2-1 in favour of this view.

    It also seems more logical and reasonable to me.

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